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HomeMy WebLinkAbout93-004 GarnerDear Mr. Garner: I. ISSUE: ( ? r y . , j �Y STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III DATE DECIDED: June 28, 1993 DATE MAILED: July 7, 1993 Charles D. Garner, Jr., Esquire Reynier, Crocker, Allebach & Reber, P.C. 424 King Street P.O. Box 777 Pottstown, PA 19464 93 -004 Re: Conflict, Public Official, Supervisor, Second Class Township, Three - Member Board, Development, Section 3(j), Motion, Second, Opposing Views, Deadlock, Absence, Meeting, Vote, Surety Bonds, Business with which Associated, Zoning Change. This Opinion is issued in response to your letter of request dated April 13, 1993. 1. Whether the Public Official and Employee Ethics law imposes any prohibition or restrictions upon a second class township supervisor from participating on a development project and zoning change when the developer utilizes a consulting firm for certain project services which consulting firm in turn may utilize the services of a business with which the supervisor is associated. 2. Whether under Section 3(j) of the Public Official and Employee Ethics Law a supervisor of a three- member board in a second class township may second a motion even if he has a conflict Charles D. Garner, Jr., Esquire July 7, 1993 Page 2 when the remaining two supervisors have opposing views or when one of the remaining two members is absent from the meeting. II. FACTUAL BASIS FOR DETERMINATION: As Solicitor for Limerick Township, you have been instructed by Township Supervisor David Akers to request an advisory from the State Ethics Commission with regard to a potential conflict which has arisen in Limerick Township, a Second Class Township with a three - member Board of Supervisors. Your inquiry relates to Mr. Akers' ability to participate in votes relating to a certain commercial development in Limerick Township. In or about the middle of 1992, Windon Development Associates filed a land development plan with Limerick Township to construct a commercial development consisting of retail stores and office buildings. Windon then hired International Management Consultants, Inc. (IMC) to do certain preconstruction services on the project. Presently, Supervisor Akers is employed by the Reliance Insurance Company which provides surety bonds for IMC. Mr. Akers is a salaried employee in the position of Bond Manager and receives no additional compensation from surety bonds executed on behalf of IMC. At this stage of the development, it is impossible to determine if this project will ever be bonded. You have submitted a copy of a written statement issued by Supervisor Akers to the Township Secretary at the April 6, 1993 meeting of the Supervisors, which document is incorporated herein by reference. The time is quickly approaching when Windon Development will need the necessary approvals of Limerick Township for both the development plan and a minor zoning change. Since it appears that the other two Supervisors acting on the plan have opposing views concerning the benefit of this plan to the community, it is entirely likely that if the matter were voted upon, the outcome of the vote would be a tie. Furthermore, if Mr. Akers is not permitted to participate in the discussion and /or voting, you are not certain that this matter could even proceed since the motion to approve would not be seconded by the Supervisor who opposes the plan. A similar scenario arises due to the fact that the Supervisor who ostensibly opposes the plan travels at length and at times is unable to attend meetings of the Board of Supervisors. If Mr. Akers must abstain from participating in the discussions on the plan, the problem again arises that the motion can never be properly seconded to place the matter before the Board for a vote. You specifically ask what, if any, role Mr. Akers may have in this process. You believe that in accord with Section 3(j) of the Ethics Law, Mr. Akers may break a tie in a 1 -1 vote after Charles D. Garner, Jr., Esquire July 7, 1993 Page 3 previously abstaining. However, you ask whether he may second the motion to have the issue properly placed before the Board of Supervisors. You further ask, in the event that only two of the three Supervisors are present, whether Mr. Akers may second a motion and subsequently vote to avoid the possibility of a one vote in favor and one vote in abstention scenario which is not an approval. III. DISCUSSION: As a Supervisor for Limerick Township, Mr. David Akers is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. 65 P.S. §402; 51 Pa. Code §11.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a Charles D. Garner, Jr., Esquire July 7, 1993 Page 4 particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the Charles D. Garner, Jr., Esquire July 7, 1993 Page 5 governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflicts under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. On the question of whether Akers has a conflict, we are guided by our ruling in Amato, Opinion 89 -002. In the cited case, we concluded that where a public official was seeking to participate in the award of a contract and the business with which he was associated was two steps removed from the matter, that is, the public official was employed by a company which sold supplies to subcontractors who in turn did business with the contractor who bid on the contract, no conflict would exist provided the public official could not reasonably and legitimately anticipate that a financial relationship would result from the award of the contract. In the instant matter, we believe that the situation is analogous to Amato in that Akers is employed by an insurance company which may obtain surety bond work from a consultant provided a surety bond is required of the consultant by the developer. Once again, the connection between the developer and the insurance company is attenuated by being two steps removed. We must therefore conclude that unless Akers has a reasonable and legitimate anticipation of a financial relationship as to his business obtaining surety bond work, which is a factual question that we cannot address, Akers would be permitted to participate and vote. As to the second question posed concerning the propriety of Akers seconding a motion where the other two Supervisors have opposing views or where one of the other two Supervisors is absent, we shall address the question since it relates to future conduct. Initially, it is true that if Akers had a conflict and the other two Supervisors were deadlocked with Akers abstaining, Akers could vote to break the tie provided he satisfied the disclosure requirements of Section 3(j). eel, Bloss, Order No. 869. Charles D. Garner, Jr., Esquire July 7, 1993 Page 6 Turning to the situation where Akers would abstain due to a conflict and one of the remaining two Supervisors would make a motion, and the other Supervisor with an opposing view who had no conflict would not second the motion, Akers could in our view second the motion. It is clear that seconding a motion is a use of authority of office. Juliante, Order No. 809. Hence, if an individual has a conflict, he could not participate, make a motion, second a motion, or vote. However, the General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. In light of the foregoing, you are advised that Section 3(j) of the Ethics Law does allow an individual to second a motion where a second is not forthcoming in situations where the two remaining Supervisors have opposing views or where one of the other two Supervisors is absent. Our ruling is expressly limited in its application to ythree member. boards involving the questioi .7 -,.. = presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: A supervisor of a second class township is a public official subject to the provisions of the Ethics Law. A second class . township supervisor may participate on a development project and zoning change when the developer utilizes a consulting firm for certain project services which consulting firm may in turn utilize the services of a business with which the supervisor is associated provided the public official may not reasonably or legitimately anticipate a financial relationship resulting from the project. Under Section 3(j) of the Ethics Law, a second class township supervisor may second a motion if he has a conflict when the remaining two supervisors have opposing views or when one of the other two members is absent from the meeting. Lastly, the Charles D. Garner, Jr., Esquire July 7, 1993 Page 7 propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. Howl Chair Commissioner Joseph; W. Marshall, III, concurs on the conflict issue but dissents on _ the `issue that seconding a motion is within the parameters of Section 3(j) of the Ethics Law.